Cohen v. Garland

Pannell, Judge,

dissenting.

I must dissent from any rulings on the merits of the enumerations of error for the reason that the brief of the appellant makes not a single reference to the pages in the record (there is no transcript of proceedings) where pleadings, demurrers, motions and orders, evidence and other *341matters necessary to a determination of and a decision on the enumerations of error may be found. Under these circumstances the enumerations of error will be considered as abandoned and no determination made thereof other than to affirm the trial judge. See in this connection Crider v. State, 115 Ga. App. 347 (154 SE2d 743), in which this court, speaking through Judge Frankum, and concurred in by Chief Judge Felton and the writer, first established this principle by judicial decision. Subsequently, this court has made the same determination in a number of eases (Strickland v. English, 115 Ga. App. 384 (2) (154 SE2d 710); Robertson v. Gore, 115 Ga. App. 537 (3) (154 SE2d 748); Millhollan v. Watkins Motor Lines, 116 Ga. App. 452, 457 (157 SE2d 901), in which it was said: “This court will not be required to search the entire record to determine the subject matter about which the appellant seeks to complain”; Hayes v. Century 21 Shows, Inc., 116 Ga. App. 490 (2) (157 SE2d 779); Noble v. State Hwy. Dept., 117 Ga. App. 33 (5) (159 SE2d 715); Bode v. Northeast Realty Co., 117 Ga. App. 226 (1) (160 SE2d 228); Brickle v. Ford Motor Credit Co., 117 Ga. App. 557 (161 SE2d 424); Hall v. State, 117 Ga. App. 649 (1) (161 SE2d 374); Jenkins v. Raiford, 117 Ga. App. 658 (2) (161 SE2d 405). The record in the present case consists of 245 pages of pleadings and various other matters, including motions, objections and orders, affidavits and depositions. Attached to the record is an index consisting of three pages and twenty-eight items, item seven of which is “plaintiff’s amendment, filed on October 11, 1967 [page] 25.” The majority, as authority for not following these cases avoided their application by stating that since the location of the amendment can be readily ascertained from the clerk’s index the ruling in Rainey v. Housing Authority of the City of Atlanta, 114 Ga. App. 333 (151 SE2d 534) applies. My answer to this is:

In Rainey v. Housing Authority the record was eighteen pages, and consisted only of the pleadings, demurrers and orders, all of which it was necessary to consider in passing upon the enumerations of error. We may have been wrong in that case inasmuch as the abandonment of an enumeration by failure to refer to the record or transcript probably should constitute an abandonment regardless of the number of pages.

*342In placing the determination of whether a party has abandoned his enumerations of error upon the extent to which the lower court clerk indexes the record sent to this court is permitting the clerk, rather than the appellant, to determine when an appellant abandons an enumeration of error. Whether an appellant has abandoned an enumeration of error is determined by the acts of the appellant, not the acts of the clerk of the lower court; neither can the act of the clerk of the lower court convert an abandoned enumeration into one not abandoned. If we feel that the rulings in the cases cited be wrong, then let us overrule them, not ignore them by distinctions which cannot, in all good reason, be supported.